Asheeta RegidiMay 11, 2018 10:09:37 IST
On Day 25 of the Aadhaar hearing, the Attorney General continued his arguments that Aadhaar met the test of proportionality.
The Attorney General argued that the Aadhaar regime had to be assessed based on what it was, and not on hypothetically what it could be. Further, the invasion of privacy was minimal. The Bench also pointed to certain gaps in the Attorney General’s arguments — that meeting the legitimate state interest requirement did not imply meeting the proportionality requirement, that Aadhaar could not prevent bank frauds or prevent terrorists from using mobile phones.
Constitutionality cannot be weighed against ‘dramatic Hollywood fantasies’
First, the Attorney General continued his argument that Aadhaar did meet the test of proportionality as emphasised in the Puttaswamy judgment. The Attorney General commenced with citing the 2012 American case of Haskell v. Harris (see Page 261), which dealt with the collection of DNA of arrested persons. The Bench here cautioned the Attorney General that this case had limited applicability to Aadhaar, since, unlike Aadhaar, it dealt with arrested persons.
The Attorney General read out portions of the judgment — here, the Court agreed that hypothetically, it was possible that the government expands the legislative scope of DNA collection in the future, or that rogue government employees could record and analyse more extensive DNA information than was permitted. However, the constitutionality of the current regime could not be weighed by arguing on hypothetical and speculative actions, which would undeniably constitute violations had they been in effect. The Court’s job, they had said, is to resolve the constitutionality of the current regime as it is designed and implemented, and not based on ‘dramatic Hollywood fantasies’.
The Bench, here, reiterated that the issue with the collection of biometrics under the Aadhaar regime was that the UIDAI had the power to define biometric information under the Aadhaar Act (Section 2(g)). This, they said, indicates a failure to meet proportionality requirements.
Finger-imaging is 99.9 percent accurate
Next, to support the choice of fingerprinting as an authentication technology, the Attorney General quoted portions of James Killerlane’s article on Finger Imaging: A 21st Century Solution to Welfare Fraud at our Fingertips. This article asserted that finger imaging technology is 99.9 percent accurate. He argued that biometrics was a safe and accurate technology, which could solve issues like money laundering, bank frauds, income tax evasion, etc.
Aadhaar cannot prevent bank frauds
To this, the Bench pointed out that bank frauds weren’t caused because of multiple identities. Aadhaar, they said, could not prevent bank frauds. Nothing in the Aadhaar Act prevented an individual from operating a layer of commercial entities to carry out a chain of transactions. At best, it may provide benefits as per Section 7 (receipt of subsidies, benefits, etc. via Aadhaar). Further, the Bench asserted that Aadhaar meeting the requirement of a legitimate state interest did not prove that it also met the test of proportionality. This, they stated, was a gap in the Attorney General’s argument.
Do terrorists apply for SIM cards?
Next, the Bench questioned how far the net of Aadhaar could be cast. Section 7, they said, appears to be understandable. Beyond this, it cannot be assumed that an entire population consists of defaulters and violators. Further, the Bench questioned the reasoning behind linking mobile numbers to SIM cards. On the Attorney General’s response that this will curb terrorism, they asserted that while terrorists might use SIM cards, what was the likelihood of them applying for SIM cards. The Bench asserted that linking of an entire population’s SIM cards was an issue.
Invasion of privacy is minimal
The Attorney General continued his arguments, arguing that Aadhaar only conducted the most minimal invasion of privacy. Aadhaar, he stated, was required only for Section 7 benefits, banks, income tax and mobile numbers. Apart from this, he asserted that it was purely voluntary. Next, he argued that the right to food, right to employment, right to medical care, and so on trumped the right to privacy. The right to privacy, he argued, could not be invoked to deprive other sections of society.
Need for balancing interests
Arguing that competing interests needed to be balanced, he cited the famous case of X v. Hospital Z. Here, an HIV positive patient’s right to non-disclosure of his identity and information by the hospital was held to be outweighed by his fiance’s right to know about his condition.
The Bench pointed out that this was a case of balancing competing rights, while in the case of Aadhaar, the state was offering a person food in exchange for his privacy. To this, the Attorney General argued that all that was taken was the bare minimum information needed and to the extent permitted by the technology. To this, the Bench stated that what constitutes minimal invasion was subjective, and varied from person to person.
Voluntary Aadhaar implies informed consent
The Bench further asserted that there were three factors that were essential — informed consent, purpose limitation and security. To this, the Attorney General asserted that the CIDR is completely safe. Further, he argued that when Aadhaar was rolled out, it was completely voluntary. This, he argued, removed any question of violation of rights and implied informed consent.
The Bench, here, asserted that the Attorney General’s arguments do not take into account the fact that during the early Aadhaar enrolments, there was no law, and hence no protection to the rights of the people. Neither was there any retrospective effect under the Act.
The Bench also questioned the collection of data by the state government, to which the Attorney General stated that the state governments were acting as the Central government’s agents in the collection of the data.
Arguments will continue next Tuesday on 10 April.
The author is a lawyer and author specializing in technology laws. She is also a certified information privacy professional.